Elaine Powell-Belnavis, Complainant,v.Steven C. Preston, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity CommissionDec 14, 2007
0120073191 (E.E.O.C. Dec. 14, 2007)

0120073191

12-14-2007

Elaine Powell-Belnavis, Complainant, v. Steven C. Preston, Administrator, Small Business Administration, Agency.


Elaine Powell-Belnavis,

Complainant,

v.

Steven C. Preston,

Administrator,

Small Business Administration,

Agency.

Appeal No. 0120073191

Agency No. 05-04-012

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated June 14, 2007, finding that the April

30, 2004, purported settlement agreement into which complainant entered

was invalid, and hence there was no breach. See 29 C.F.R. � 1614.402;

29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The settlement agreement provided, in pertinent part, that the agency

would offer complainant a GS-13 Procurement Center Representative

bargaining unit position. In exchange, complainant agreed to drop

an informal complaint. On her last day of work at the agency, the

Chief Human Capital Officer (Chief) signed the purported settlement

agreement.

By letter to complainant dated May 5, 2004, the agency's Associate

Deputy Administrator for Office of Management and Administration

advised complainant that the purported settlement agreement was invalid.

The administrator explained that (1) the Chief was not authorized to

act on behalf of the agency to settle the informal complaint, (2) in

accordance with EEO SOP 37 13 2, the Office of General Counsel (OGC)

is required to participate in all EEO settlement negotiations, to review

proposed EEO settlements for legal sufficiency and is signatory on all

settlement agreements that involve the expenditures of agency funds

(which would include a promotion), (3) OGC did not participate nor did

it review any documents for legal sufficiency pertaining to this case

nor sign any agreement as required under the SOP, and (4) in instances

where promotions or changes in positions are indicated, the appropriate

officials must be involved to make determinations such as whether a

position exists and funds are available, which was not done.

A review of the SOP supports the agency's contention that the Chief

acted outside her authority when negotiating and signing the purported

settlement agreement. For settlement of EEO claims by non- Office

of Inspector (OIG) employees, the SOP requires that the Assistant

Administrator for the agency Equal Employment Opportunity and Civil

Rights Compliance (EEO&CRC), a representative of OGC, and an appropriate

management official must be signatories to all formal settlement

agreements unless waived in writing by those individuals, and an OGC

representative must sign any settlement agreement entered at any stage of

the process in which the payment of federal funds is involved. Also, in

EEO settlements involving non-OIG employees, OGC must review and concur on

legal sufficiency, it must be reviewed by the Assistant Administrator of

EEO&CRC, and OGC must be involved in negotiations involving pre-complaint

EEO settlements involving the payment of agency funds. The weight of

the record shows that most or all these SOP requirements were violated.

In two emails sent by the Acting Assistant Administrator of EEO&CRC to

the Chief a week and a half prior to the purported settlement agreement,

she was notified of some of the above requirements. The first email

advised that in settlement agreements involving the payment of agency

funds, including a promotion, OGC must sign the settlement agreement;

that in instances where promotions are indicated, EEO&CRC always attempts

to ensure coordination through appropriate offices to ensure the position

and funds exist and the complainant is qualified, and that settlements

outside the informal EEO process should be fashioned in conjunction

with OGC. The second email recommended that before going further on

resolution attempts, they meet with OGC for advice on how to proceed,

and without such a meeting, a resolution agreement cannot be finalized

by his office. The Chief knew she did not have authority to enter into

the purported settlement agreement because the weight of the record

shows little or none of the above things occurred. When asked questions

such as how she became involved in the settlement negotiations or why

she believed she had authority to offer complainant the promotion, the

retired Chief wrote she did not recall. The above emails were forwarded

to complainant on April 21, 2004.

Generally, in order to be valid and enforceable, a signed settlement

agreement must be executed by an authorized representative of the agency.

Soliz v. United States Postal Service, EEOC Request No. 05901010

(October 25, 1990). This did not occur here. However, where the

purported representative of the agency had apparent authority to sign the

settlement agreement, it can be valid and enforceable. Apparent authority

is the power to affect legal relations of another person or entity by

transactions with third persons, professed as agent for another, arising

from and in accordance with the other's manifestations to such persons.

Gutierrez v. Department of Health and Human Services, EEOC Appeal

No. 01995569 (March 27, 2002). We find the Chief did not have apparent

authority by virtue of the referenced emails forwarded to complainant

a week and a half before the purported settlement agreement was signed.

On appeal, complainant argues that the Chief had actual authority to

sign the purported settlement agreement, as evidenced by her being the

sole signatory for the agency other agreements. In support, complainant

submits a Memorandum of Understanding signed by her and the Chief on

April 2, 2003. Complainant signed the Memorandum as a union President.

This was not settlement agreement closing an EEO claim. Rather, it

was Memorandum of Understanding between the agency and union regarding

the performance appraisal system, working conditions and allowance of

credit hours. This does not prove the Chief had actual authority to

sign the purported EEO settlement as the sole agency representative.

Complainant also argues that the Chief had apparent authority, but this

is rebutted by the emails sent to complainant.

Accordingly, the FAD's finding invalidating the settlement agreement

is affirmed. As the settlement agreement is invalid, complainant's

complaint is reinstated for processing under 29 C.F.R. Part 1614.

ORDER

The agency is ordered to process complainant's complaint in accordance

with 29 C.F.R. Part 1614.1 The agency shall acknowledge to complainant

that it has received the remanded complaint within thirty (30) calendar

days of the date this decision becomes final.

A copy of the agency's letter of acknowledgment to complainant must be

sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the

policies, practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as the

defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 14, 2007

__________________

Date

1 After the agency advised complainant that the settlement agreement

was invalid, she finalized the informal complaint by filing her

formal complaint. By FAD dated May 19, 2004, the agency dismissed

the complaint, finding it was untimely filed (agency determined it

was untimely filed even before the purported settlement agreement was

signed). Complainant appealed. In Powell-Belnavis v. Small Business

Administration, EEOC Appeal No. 01A44808 (November 16, 2004), request

for reconsideration denied, EEOC Request No. 0520050357 (January 31,

2007), the Commission declined to address the timeliness of the complaint,

instead finding the matter that must be addressed was complainant's claim

of settlement breach. The decision noted that the agency did not have the

opportunity to address this or the validity of the settlement agreement,

and remanded the matter for a determination on breach. Because the

June 14, 2007, FAD before us only ruled on the settlement agreement,

we do not rule on the timeliness of the complaint.

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0120073191

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120073191